NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
22-P-403
J.E.M.
vs.
M.A.M.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Plaintiff J.E.M. (husband) appeals from an amended judgment
of divorce nisi entered after a trial in Probate and Family
Court. On appeal, the husband raises several arguments,
including that the judge erred in various ways in dividing the
marital estate, that the judge miscalculated the husband's
income for child support purposes, and that the judge erred in
granting sole legal custody of the parties' two children to
defendant M.A.M. (wife), and in reducing the husband's parenting
time from the temporary schedule in effect during the
proceedings. We affirm.
Background. We briefly summarize the facts pertinent to
the issues on appeal, as drawn from the trial judge's findings
and supplemented by undisputed evidence in the record. See
Pierce v. Pierce, 455 Mass. 286, 288 (2009). 1. Marriage and separation. The parties were married in
2009. At the time, the parties each individually owned various
assets acquired prior to the marriage, including real property.
Relevant here is that the husband owned a three-unit rental
property in South Boston and a condominium that was occupied by
his mother.
During the marriage, the parties had an "upper-middle-
income lifestyle." Both parties worked and, with the exception
of the husband's premarital assets, contributed equally to the
marital estate. The parties jointly purchased a home shortly
after they were married (marital home), and their two children
were born in 2010 and 2011. In January 2017, the husband moved
out of the marital home and filed for divorce shortly
thereafter. The wife counterclaimed for divorce.
2. Temporary orders. Pursuant to orders entered prior to
trial, the wife had exclusive use and occupancy of the marital
home until December 2017, after which she moved to a nearby
property that she recently purchased. By that time and as
authorized by the court, the husband had refinanced the existing
mortgage on the marital home and removed the wife from the deed
to that property.
With respect to the children, the parties shared temporary
legal custody. The children resided primarily with the wife,
and the husband had parenting time for dinner every other
2 Monday, overnight every Wednesday, and from Friday evening to
Monday morning every other weekend. The husband paid the wife
$581 per week in child support.
Finally, the court appointed a guardian ad litem (GAL) to
report and make recommendations on custody and a parenting plan.
The GAL filed her report with the court in September 2017,
wherein she ultimately recommended that the parents share legal
and physical custody of the children.
3. Findings and rulings. The case was tried on seven days
from October 2018 until November 2019. In January 2021 the
trial judge issued detailed findings of fact, together with a
rationale. In short, the judge concluded that the parties were
entitled to an "approximately equal division of the marital
estate," exclusive of three of the husband's premarital assets.
For the premarital assets, the judge awarded the wife twenty-
five percent of the value of the South Boston property and the
husband's premarital retirement accounts, and none of the value
of the condominium where the husband's mother resided. The
judge then calculated the value of each asset and considered
which party would retain the asset after the divorce. Based on
these calculations, the judge determined that the husband was
required pay the wife $508,465 to effectuate an equitable
division of the property.
3 With respect to the children, the judge left the parenting
schedule established by the temporary order largely unchanged,
except that the husband's dinner visits on alternating Mondays
were eliminated. The judge also awarded the wife sole legal
custody. The judge then applied the Child Support Guidelines
(guidelines), and determined that the husband's weekly child
support obligation was $740.1
After judgment entered the husband filed a motion to alter
or amend arguing, among other things, that the only way to meet
his financial obligations under the judgment was to sell the
South Boston property. The husband requested that the judge
reassess the division of assets in light of the capital gains
tax liability and other expenses that he would incur as a result
of the sale. The judge denied the motion as to that request,
but he allowed it in other respects not relevant to this appeal.
An amended divorce judgment subsequently entered.
Discussion. 1. Property division. The husband argues
that despite determining that "an approximately equal division
of the marital estate is most equitable," the judge failed to
effectuate such a division. We employ a two-step analysis in
our review under the equitable distribution statute, G. L.
c. 208, § 34. See Adams v. Adams, 459 Mass. 361, 371 (2011).
1 The judge found the wife had no current need for alimony.
4 First, we determine whether the judge considered all relevant
§ 34 factors in his findings. See id. Second, we "determine
whether the reasons for the judge's conclusions are 'apparent in
[the judge's] findings and rulings'" (citation omitted). Id.
"A division of marital property which is supported by findings
as to the required factors will not be disturbed on appeal
unless 'plainly wrong and excessive'" (citation omitted).
Passemato v. Passemato, 427 Mass. 52, 57 (1998).
Here, the judge made findings on the relevant § 34 factors
and the parties do not argue otherwise. We turn to the
husband's specific arguments that the property division was
plainly wrong and excessive.
a. Marital home. Prior to trial, the husband refinanced
the mortgage on the marital home. At that time, he consolidated
a total of $58,258 in individual and joint debts into the
mortgage, thereby reducing the home's equity by that amount.
The debts were comprised of $39,182.42 for the husband's car
loan and individual credit card debt, and $19,075.94 for joint
credit card debt and an outstanding water bill.2 In the division
of assets, the husband received the marital home. To calculate
the equity value the husband received in the home, the judge
first determined the fair market value, then deducted the
2 The amount of the water bill was $251.95. These amounts were listed on the husband's financial statement.
5 balance of the mortgage, and then added back the $58,258. The
judge's calculation resulted in the husband being solely
responsible for the $58,258 debt.
We discern no error. It is not contested that the bulk of
the debt ($39,182) was the husband's individually, and moreover,
the judge could have found that the joint credit card debt was
incurred individually by the husband after the parties'
separation, based on the wife's testimony that the husband shut
off her access to the joint credit card "[a]lmost immediately"
after he moved out of the marital home. And in any event, the
judge's decision to make the husband responsible for the
entirety of that debt "flows rationally from the judge's
findings under § 34" (citation omitted). Casey v. Casey, 79
Mass. App. Ct. 623, 629 (2011). The judgment left the husband
with more assets than the wife, including an income-generating
rental property. The husband also earned more than the wife.3
Therefore, the judge's treatment of the $58,258 debt did not
render the property division plainly wrong and excessive.4
3 The judge found the husband's gross weekly income was $4,362. The judge found that the wife, who was then working on a reduced schedule, could resume full-time work. If the wife worked on a full-time basis, the judge found, her gross weekly income would be $2,326. 4 The wife did not receive "double recovery," as the husband
argues. The judge's decision to add the debt back into the equity of the house merely relieved the wife of an obligation to pay that debt and made that portion of the mortgage solely the
6 b. Wife's trust interest. The wife received a one-fifth
interest in a trust that was settled after the parties'
separation by the wife's mother (who later passed away during
the trial). The trust held title to two pieces of real
property, one in which the wife's stepfather resided and the
other that was under agreement for sale for a purchase price of
$400,000. The husband argues that the judge committed clear
error in treating the wife's trust interest as an opportunity to
acquire future assets and income, and not as part of the marital
estate subject to equitable distribution. See G. L. c. 208,
§ 34.
Again, we perceive no error. The parties each had
individual assets, and while the judge could have divided such
property as part of the marital estate, it was well within his
discretion not to do so. See Rice v. Rice, 372 Mass. 398, 400
(1977) (judge may "assign to one spouse property of the other
spouse whenever and however acquired"). As noted above, the
wife's trust was settled after the parties' separation and was
funded during trial. At the time of trial, the wife had not yet
received a distribution from the trust but the judge concluded
that the wife would be entitled to one once the real property
husband's responsibility. In essence, the judge treated this debt like the remaining liabilities and assigned it exclusively to the husband.
7 held in the trust was sold. The divorce judgment did not afford
the husband any portion of the wife's trust interest and, thus,
treated that trust interest similarly to the husband's
premarital assets -- that is, the condominium, the premarital
retirement funds, and the South Boston property, which were not
divided equally between the parties. See Baccanti v. Morton,
434 Mass. 787, 792 (2001) (judge has considerable discretion in
equitable division of premarital assets determined to be part of
marital estate). The judge did not abuse his discretion in
concluding that, just as the wife did not contribute to the
husband's acquisition of his premarital property, the husband
did not contribute to the wife's postseparation acquisition of
her trust interest, which in any event amounted to a small
fraction of the overall value of the marital estate. See
Savides v. Savides, 400 Mass. 250, 253 (1987).
c. South Boston property. The husband challenges the
value assigned to his South Boston rental property. The wife
presented evidence from an expert real estate appraiser that the
fair market value of the South Boston property was $1.6 million.
The expert utilized the sales comparison approach, and he
identified four comparable sales and one active listing. The
husband did not present his own expert testimony on the issue,
instead testifying on his own behalf that the property was worth
$1.05 million, representing the amount of an appraisal the
8 husband obtained at some point during litigation ($1.25 million)
less the amounts for repairs and improvements that the husband
believed were necessary. The judge credited and adopted the
wife's expert's valuation after making findings regarding the
expert's basis. He expressly did not credit the husband's
valuation. This was not, as the husband argues, clear error.
See Child v. Child, 58 Mass. App. Ct. 76, 78 (2002) (judge may
accept reasonable expert opinion on valuation).
The husband's arguments to the contrary are unavailing.
The husband first argues that the valuation failed to account
for necessary repairs to the property. The expert noted in his
report that the husband indicated it would cost $300,000 to
bring plumbing, heating, and wiring issues up to code. On
cross-examination, the expert testified that he had no reason to
doubt the husband's reports about the deficiencies in the
property, but that the husband did not provide any backup
information to support his representations. Moreover, the
expert's valuation considered that the property was in "average
condition" based on his inspection of the premises (supported by
photographs contained in his report) and, notably, the
information provided by the husband. The judge accepted that
point and adopted it in his findings. See Baccanti, 434 Mass.
at 791 (reversal not required "simply [because judge] did not
make the findings sought by the husband").
9 The husband's argument that the expert incorrectly
disregarded certain comparable sales fares no better. The
husband focuses on two other properties identified in the
expert's report that were of similar age, had the same number of
bedrooms, and were in close proximity to the South Boston
property, but sold for considerably less than the comparables
used by the expert. While the expert did not explicitly provide
his reasoning for not using those two properties as comparables,
the reasoning is apparent from his report. Those two properties
only have two bathrooms; thus, it was reasonable to infer that
they contain fewer than three units. The majority of the
comparables used by the expert, like the South Boston property,
were three-unit homes.5 In any event, the weighing of such
evidence is a matter for the trier of fact, and here the judge's
findings were not clearly erroneous. See Whelan v. Whelan, 74
Mass. App. Ct. 616, 619 (2009).
d. Tax consequences. The husband maintains that the judge
erred in failing to consider the tax consequences of the
property division -- specifically, the husband asserts that he
will have to sell the South Boston property and, as a result,
incur roughly $360,000 in tax liability.
5 The judge stated that all five comparables were three-unit properties. However, the expert testified that the fourth comparable sale was "a larger two-family." The discrepancy does not undermine the expert's conclusion.
10 This argument was not raised at trial, but rather was first
raised in a posttrial motion. At that time, the husband
asserted that he would have to sell the South Boston property,
but he provided no detail or further evidence in that regard.
Nothing in the divorce judgment compelled the sale of the
property. Under the circumstances, the judge was within his
broad discretion to decline to adjust the value of the South
Boston property based on the husband's bare representation that
he would have to sell the property.6
This is particularly so in absence of further evidence on
the tax consequence issue, and where the issue was first raised
after trial. A postjudgment motion to amend may be a proper
vehicle to raise the issue in some circumstances, but the
request must be supported by "appropriate evidence in the
record" (citation omitted). L.J.S. v. J.E.S., 464 Mass. 346,
350 (2013) (motion to amend properly raised issue that alimony
provisions in judgment could be recharacterized as child support
for Federal tax purposes). The judge was not plainly wrong for
denying the motion on this record, nor was the property division
6 The husband relies on Williams v. Massa, 431 Mass. 619, 629 (2000), for the proposition that he need not present evidence of the necessity of a sale. Williams, supra at 629-630, is distinguishable in that the estimated capital gains tax as applied to the valuation of certain assets was a live issue at trial in that case and the judge ultimately awarded those assets to the husband.
11 excessive in wife's favor as a result. See Rice, 372 Mass. at
402 n.4; Fechtor v. Fechtor, 26 Mass. App. Ct. 859, 866 (1989).
2. Child support. The husband next challenges the child
support calculation, claiming that the judge erred when he
refused to apply certain deductions to the husband's rental
income from the South Boston property.
Specifically, in determining that the husband's weekly
rental income was $811, the judge expressly did not deduct from
that income the husband's reported annual repair expenses of
$25,613, explaining that the "[h]usband admitted on cross-
examination that these are not recurring expenses." The $25,613
amount was reflected in the husband's financial statement, as it
was the total of $9,350 for repairs and $16,263 for "Reserves
for Necessary Repairs/Maintenance." During cross-examination,
the husband testified with respect to the $9,350 figure that
"[s]ome may be, some may not be" recurring expenses. There was
no further explanation of the $16,263 "Reserves" amount. In
light of this record, we cannot say that the judge abused his
discretion in declining to deduct the purported repair expenses
from the rental income. See Smith-Clarke v. Clarke, 44 Mass.
App. Ct. 404, 406 (1998) (reasonable for judge to disregard
certain claimed items based on husband's lack of records
substantiating claimed business expenditures).
12 The judge also found that the husband improperly deducted
his mortgage principal payments of roughly $8,570 from his gross
rental income. Neither the guidelines nor our case law
expressly authorize, let alone compel, deduction of mortgage
principal payments from a parent's rental income for child
support purposes. Unlike interest payments, the payments of
principal directly increase the husband's equity in the South
Boston property, and thereby increase his net worth. As such,
it was a permissible exercise of the judge's discretion to
decline to treat mortgage principal payments as business
deductions for child support purposes.7 See Child Support
Guidelines § I(C) (2018) (claimed business expenses carefully
reviewed to determine appropriate level of gross income
available to parent). Cf. Whelan, 74 Mass. App. Ct. at 627
(business-related expenses "reasonable and necessary to the
production of income" may be deducted from rental income).
3. Custody. Finally, the husband challenges the judge's
decisions on legal and physical custody of the parties'
7 Both parties highlight case law from other jurisdictions demonstrating a split on the issue of whether a parent's available income may be reduced by mortgage principal payments for child support purposes. Irrespective of those extrajurisdictional cases, "[t]he guidelines and our case law leave the definition of income flexible and the judge's discretion in its determination broad." Casey, 79 Mass. App. Ct. at 634. We are satisfied that the judge's decision on the issue in these circumstances was not an abuse of discretion.
13 children. Custody determinations are guided by the best
interests of the children. See Ardizoni v. Raymond, 40 Mass.
App. Ct. 734, 738 (1996). We will not disturb the judge's
factual findings unless they are "plainly wrong or clearly
erroneous." Schechter v. Schechter, 88 Mass. App. Ct. 239, 245
(2015). "The judge's findings must, however, 'add up to
sufficient support for [the] custody order'" (citation omitted).
Ventrice v. Ventrice, 87 Mass. App. Ct. 190, 195 (2015). We
review the ultimate determination on custody for an abuse of
discretion in how the judge accounted for the children's best
interests. See Schechter, supra.
a. Legal custody. The husband argues that the judge
abused his discretion in ordering legal custody to the wife,
rather than joint legal custody. He contends that the judge
ignored examples of the parties' successful exercise of joint
custody, disregarded findings of the wife's unilateral decision-
making, and failed to explain why he did not adopt the GAL's
recommendations.
The judge explained that shared legal custody was not
appropriate "[b]ased on the parties' inability to communicate
effectively." Finding that the wife was historically
responsible for scheduling the children's medical appointments
and was more involved in decisions on schooling, and that the
husband had refused to cooperate in obtaining certain academic
14 and psychological support for one of the children, the judge
determined it was in the children's best interests to award sole
legal custody to the wife.
The judge's legal custody determination was amply supported
by his findings. The husband blocked the wife's cell phone
number so that she could not communicate with him by phone call
or text message through the time of trial. The husband also did
not allow the children to communicate with the wife during his
parenting time. The wife set up "Our Family Wizard" (per the
GAL's recommendation) and a shared calendar as a means of
communicating about the children, but the husband did not
participate in either mode of communication.
The parties communicated via e-mail, but the e-mails were
"replete with derogatory comments toward each other." The judge
made detailed findings on several instances when the husband was
hostile to the wife, including while attending the children's
therapy appointments. While the husband maintains that the
parties agreed on some parenting decisions, the judge detailed
many times when they could not, and specifically noted concern
about the husband's refusal to cooperate in obtaining certain
supports for one child. See Mason v. Coleman, 447 Mass. 177,
182 (2006) (shared legal custody "generally appropriate only if
the parties demonstrate an ability and desire to cooperate
amicably and communicate with one another to raise the
15 children"). Compare Carr v. Carr, 44 Mass. App. Ct. 924, 925
(1998), cert. denied, 525 U.S. 1073 (1999) (joint custody
inappropriate where "the relationship of the parties has been
dysfunctional, virtually nonexistent, and one of continuous
conflict"). These findings sufficiently support the judge's
ultimate conclusion that joint legal custody was not in the
children's best interests.
The husband's argument that the judge failed to consider
the GAL's recommendation of joint legal custody is without
merit. The judge was not required to adopt the GAL's
recommendations. See Mason, 447 Mass. at 186. Rather, the
judge considered the GAL's recommendation and, as he was
required to do, drew his own conclusions. See D.B. v. J.B., 97
Mass. App. Ct. 170, 182 (2020). In doing so, the judge
expressly considered the parties' communications during the two-
year period after the GAL's September 2017 report, and
adequately explained why he chose not to follow the GAL's
recommendation.
b. Physical custody. Finally, the husband argues that the
judge failed to explain the reduction in the husband's parenting
time by eliminating Monday dinner visits on alternating weeks.
In eliminating those dinner visits, the judge found that "it is
in the children's best interests to limit the number of
exchanges between the parties." The judge's findings described
16 instances when the husband made derogatory remarks toward the
wife in the children's presence during parenting exchanges and
at other times when they were together for reasons pertaining to
the children. These incidents largely postdated the GAL's
report, in which the GAL observed that the husband's inability
to refrain from making negative comments to and about the wife
could be potentially damaging to the children's well-being.
Where the husband was on notice that his behavior was
detrimental to the children and failed to alter it, the judge
was within his discretion to decrease parenting time to minimize
the number of parenting exchanges where such conduct could
occur.8 See Shak v. Shak, 484 Mass. 658, 664–665 (2020) (use of
8 The judge credited the wife's testimony concerning the two most recent Monday night parenting exchanges occurring in summer 2019, including that the husband called the wife a "fucking whore" and a "bitch" in the presence of the children.
17 disparaging language may factor into best interest analysis for
custody determinations).9
Amended judgment of divorce affirmed.
By the Court (Wolohojian, Englander & D'Angelo, JJ.10),
Clerk
Entered: March 29, 2023.
9 The wife's request for appellate attorney's fees and double costs is denied. 10 The panelists are listed in order of seniority.